SB 1070 lawsuit

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A hearing was held in another lawsuit looking to overturn the state’s immigration law, SB 1070. It’s a separate case from the one being considered by the U.S. Supreme Court right now. Plaintiffs in the case are asking a federal judge in Phoenix to grant them class action status in fighting the law. Dan Pochoda, Legal Director for the ACLU of Arizona, discusses the case on Arizona Horizon.

Ted Simons: Good evening. Welcome to "Arizona Horizon." I'm Ted Simons. Former state lawmaker Richard Miranda was sentenced today to 27 months in prison for defrauding a charity he once headed. U.S. district judge Roslyn Silver sentenced him to the maximum prison term alossed under his plea bargain for what the judge called his unmitigated greed. Miranda will have to pay $230,000 in restitution.

Ted Simons: Sometime this month the U.S. hysterectomy is expected to rule on the federal government's lawsuit on SB 1070. Today a hearing was held in another lawsuit looking to overturn the law. Plaintiffs in the case heard today are asking a federal judge in Phoenix to grant them class action status in fighting the law. Here to explain is Dan Pochoda, legal director for the ACLU of Arizona and an attorney of record in the lawsuit. Good to have you here.

Dan Pochoda: Good to be here.

Ted Simons: Let's start with the basics here. Why are you pushing class action?

Dan Pochoda: Well, class action status is a procedural device that's often used in civil rights lawsuits that Federal Rules of procedure indicate that it's uniquely applicable to civil rights lawsuits particularly when we're only asking for injunctive relief. It does not involve requests for money damages for the plaintiffs or for the class but injunctive relief to stop what we consider to be a clearly unconstitutional law. It's a law obviously of general applicability. If it goes into effect it will depending what the Supreme Court does impact all persons throughout the state. So the class action status would allow the present individual and organizational plaintiffs to act on behalf of all similarly situated persons throughout the state that are being threatened by this law including about their race and ethnicity, national origin solely on that basis to be stopped and detained and other classes of persons that should have full say in the litigation as it goes forward.

Ted Simons: Basically represents all potential discrimination victims. Who are the plaintiffs here?

Dan Pochoda: Presently we have a wide array of plaintiffs particularly large group and scope and I should add that just last week Judge Bolton, the judge in this case, ruled that all of them do have standing. The defendants have brought a motion challenging their standing. In very strong ruling the made clear that the individual plaintiffs, which are a number of persons already harmed by the threat of this law or by similar actions, that have taken place in the state, as well as a number of organizational plaintiffs, and including community groups, Latino groups, labor unions, so forth. There's 24 plaintiffs presently so a wide array now that have standing. And will maintain standing whatever happens on the class certification motion.

Ted Simons: When the judge decided not to dismiss and kept the thing going you mentioned there were some folks that could show that they had been already harmed. I know the state is saying that basically they are hanging everything on the fact that no one has been harmed because the law has been blocked so far.

Dan Pochoda: Well, there's no question that the actions of the court including the 9th Circuit Court of Appeals and Department of Justice case has meant that the key provisions of this law have not gone into effect. But there already have been harms. There were chilling effects, for example the First Amendment ruling by Judge Bolton found that persons who otherwise would solicit for work were not doing it because of the fears of this law. So not all of the the provisions have been withdrawn at the moment. And many persons are in fear just because of the fact that when this law does go into effect no matter how it's enforced it will inevitably result in harmful impacts including inevitable use of race as the criteria for stopping and investigating people as we have seen in Maricopa County and a lot of the law is based on what the sheriff has already done in Maricopa County.

Ted Simons: You say inevitable. The governor's side and state side says it's all speculative. How does that play out?

Dan Pochoda: Speculative if the law never goes into effect. There's no question if in fact the Supreme Court upholds what Judge Bolton and the 9th circuit does and says it will never go into effect it would alter the landscape including the litigation landscape. Assuming it goes into effect the way the argument went many are speculating some key provisions will be put back into operation. There's no question in our minds that it is inevitable the way those provisions are written that race will be the factor used by law enforcement throughout the state who are mandated and the law talks in terms of shall, mandated to stop people who they suspect might be here unlawfully. That's generally based on race. Language use of people in the state. There's in fact no way to assess that. It's a status crime an we have seen all too often in Maricopa County and in other counties that have had this aggressive anti-immigration policy that race is the factor used. Just cast a wide net to pick up as many brown skinned people as possible and then determine if they are here unlawfully, turning the presumption of innocence on its head in a clearly unconstitutional manner.

Ted Simons: The idea of physical characteristics and language skills being at play, the judge obviously thinking that's enough of an argument to keep this going. You mentioned this is pretty strong stuff you're saying here. Big net, anyone of Latino origin is at risk here. Those who are on the other side say the law was written specifically to avoid that kind of thing.

Dan Pochoda: Well, it's written to avoid it only because they put in the caveat don't do anything illegal but if you are going to act unconstitutionally the fact that there's a provision in the law that says don't do anything illegal doesn't count for much. We have seen in enforcing these laws you get these very aggressive anti-immigration policies, most notably, Maricopa County, that race will be the organizing principle that people say, well, great majority of people are undocumented are from Mexico. Of course ignoring the fact that the great majority of Latinos in Arizona are here lawfully. We'll grab as many Latino and brown skinned people as they can and as I said, sort them out after to demonstrate how aggressive they are and this law mandates and allows private lawsuits requiring local law enforcement to enforce the law.

Ted Simons: Were these the arguments you made or plaintiffs made today?

Dan Pochoda: Those were some of the arguments. The arguments -- along -- traditional lines that the Federal Rules of Civil Procedure very much contemplate class action status in the civil rights injunctive lawsuit where there's a common policy as this is. It's a common law. One law that impacts all persons. The state has admitted if it goes into effect they will aggressively enforce it. It's required that all local departments enforce it. So it will be a common impact and a harmful impact by all experienced.

Ted Simons: The other side saying there's a slim chance of thissing a problem, if you're stopped and aren't breaking the law, I'm gathering they are basically saying again the provisions are on hold. There is no injury yet.

Dan Pochoda: Of course we're getting pretty close to the day where we'll know if those provisions will remain on hold. The Supreme Court will decide no later than the ends of June what they will be doing about the injunction, preliminary injunction in the Department of justice lawsuit. That will impact not only the situation on the streets but certainly in terms of the litigation. So I don't believe there will be any ruling in our lawsuit, friendly house litigation, being brought by an array of groups including the ACLU, national immigration law center and others, Asian Pacific groups there will be any ruling until that comes down, which is in a few weeks. Then it's possible we will be going much more full steam ahead if any of the provisions are put back into effect.

Ted Simons: Basically you go away or you step to the top of the heap, don't you?

Dan Pochoda: Yes. Our lawsuit, which includes many challenges not part of the Department of Justice lawsuit, which only covered preemption, the friendly house litigation, which is much broader based coalition of community groups and plaintiffs includes significant constitutional pegs, First Amendment violations, 14th amendment, racial profiling. We would use those as we do in many civil rights lawsuits to demonstrate the unconstitutionality and seek an injunction from this court.

Ted Simons: Good to have you here. Thanks for joining us.

Dan Pochoda: My pleasure.

Dan Pochoda:Legal Director ACLU of Arizona

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